Davies v. Oxenreider
| Decision Date | 20 July 1910 |
| Docket Number | 241-1909 |
| Parties | Davies, Appellant, v. Oxenreider |
| Court | Pennsylvania Superior Court |
Argued November 10, 1909
Appeal by defendants, from judgment of C.P. Berks Co.-1907, No. 82 on verdict for defendants in case of Edward Davies v. Sarah K. Oxenreider.
Feigned issue to determine the ownership to farming implements. Before Ermentrout, P. J.
The facts are stated in the opinion of the Superior Court.
The court charged in part as follows:
[I consider the question whether possession has been taken purely a legal question in this case, and hold, first, that when there is a sale of personal property, it is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale that was made, and that so far as the goods mentioned in the bill of sale are concerned, those goods having been found in the possession of the defendants in the execution, were subject to levy, and that so far as those goods are concerned it will be your duty to assess their value and find a verdict in favor of the defendants; no sufficient possession, in law having been taken under the bill of sale, those goods were subject to the levy of the execution creditors, the defendants.]
[I have already said, that, in the judgment of the court, so far as the goods mentioned in the bill of sale are concerned, the title to those goods passed by virtue of the sheriff's sale to these defendants; that Mr. Davies having taken those he would be liable for their value, and as to those goods you must find in favor of the defendants.]
[Under the instructions of the court you will find in favor of the defendants as to the articles contained in the bill of sale.]
Verdict and judgment for defendants for $ 326.97. Plaintiff appealed.
Errors assigned amongst others were above instructions, quoting them.
Cyrus G. Derr, with him Edward S. Kremp, for appellant, cited: Pressel v. Bice, 142 Pa. 263; McCullough v. Willey, 200 Pa. 168; Crawford v. Davis, 99 Pa. 576; Goodard v. Weil & Co., 165 Pa. 419; Bell v. McCloskey, 155 Pa. 319.
Silas R. Rothermel, for appellees, cited: Stephens v. Gifford, 137 Pa. 219; Lehr v. Brodbeck, 192 Pa. 535; Clow v. Woods, 5 S. & R. 275; Crawford v. Davis, 99 Pa. 576; Bell v. McCloskey, 155 Pa. 319; Kendig v. Binkley, 10 Pa.Super. 463; McCullough v. Willey, 200 Pa. 168.
Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
On June 20, 1902, William M. Oxenreider, executed and delivered a judgment note to Sara B. Ernst for $ 359.89, and on July 7, a like note to Sara K. Oxenreider, for $ 500. At the time of making these notes William M. Oxenreider was a tenant farmer, and the owner of considerable stock and implements which were used by him on the Leonhart farm. During that year, by reason of a fire, he lost considerable of his stock and farming implements. In March, 1903, he moved to the farm of David W. Mogel, who occupied one-half of the mansion house, and Oxenreider occupied the other part of the house and another building. Under the lease with Mogel he was a cropper for the half share. Finding his stock insufficient to operate the farm properly, he purchased additional property with money advanced by Mogel, and on April 14, 1903, he executed a bill of sale vesting the absolute ownership of the farming stock and implements in Mogel, and attached to it a schedule of items and values which aggregated $ 661, which represented the amount of money advanced by Mogel. During his tenancy of three years, the stock was used on the Mogel farm by Oxenreider, who repaid to Mogel all the money advanced by him except $ 298.
In January, 1906, William Oxenreider and Edward Davies entered into an agreement in writing, whereby Oxenreider was to lease the farm of Davies for one year, commencing April 1, 1906, upon the same terms, which were set forth in an agreement between Davies and one Reber, dated March 19, 1900.
Mogel refused to allow the property to be taken from his farm, without the payment of the balance due to him under the bill of sale, whereupon Davies, on January 6, 1906, paid that amount to Mogel, and with the knowledge and consent of Oxenreider took from him an assignment or transfer of all his right, title and interest in the bill of sale, when Oxenreider moved all the stock to the Davies farm, which he occupied as a tenant until January, 1907, when all the property was levied upon on executions issued by Sara K. Oxenreider, his mother, and Sara B. Ernst, his mother-in-law, on judgments entered on the notes as above stated, and which were entered of record on January 25, 1907. Davies then claimed the stock and two feigned issues were framed under the Act of May 26, 1897, P. L. 95, in each of which Edward Davies was named as the plaintiff, and in one Sara K. Oxenreider, and in the other Sara B. Ernst, was named as the defendant. The cases were tried together. There was some controversy in regard to the title to a mare and a colt, which is eliminated from this case by the jury, under direction of the court, finding as to them for the plaintiff, and " As to the farm stock and implements, we (the jury) find in favor of the defendants, for the sum of $ 557.75; Mrs. Oxenreider's share, $ 326.97; Mrs. Ernst's share $ 230.78." Separate appeals were taken to this court.
The learned trial judge held that the bill of sale as between Oxenreider and Mogel, by its terms, vested the absolute title of the property in Mogel, but further held, as stated in the fifth assignment,
And further as stated in the sixth assignment, ...
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